Kerala High Court
Shoukathali vs Sub Insepctor Of Police on 20 February, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935
Crl.MC.No. 277 of 2012
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AGAINST THE ORDER IN CC 331/2009 of JUDICIAL FIRST CLASS MAGISTRATE
COURT.-II,THAMARASSERY
AGAINST THE ORDER IN CC 441/2009 of JUDICIAL FISRST CLASS MAGISTRATE
COURT, KUNNAMANGALAM
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PETITIONER(S)/ACCUSED:
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SHOUKATHALI, AGED 35 YEARS,
S/O.ABOOBACKER, MOONAM MADATHIL HOUSE, KALPALLY,
PARAMMAL AMSOM DESOM, MAVOOR.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT(S)/COMPLAINANT/STATE:
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1. SUB INSEPCTOR OF POLICE,
MUKKOM POLICE STATION-673602.
2. SUB INSPECTOR OF POLICE,
VANITHA POLICE STATION, KOZHIKODE-673602.
3. SUB INSPECTOR OF POLICE,
MAVOOR POLICE STATION673661.
4. STATE,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
5. NAZEERA @ KUNHEEMU,
D/O.ABDU RAHIMAN KUTTY, AATTUMPURATH HOUSE,
KAKKAD VILLAGE, KARASSERY, MUKKOM673602.
R1-4 BY PUBLIC PROSECUTOR SRI.GITHESH.R.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-02-2014,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
Crl.MC.No. 277 of 2012
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APPENDIX
PETITIONER(S) EXHIBITS
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ANNEXURE-I TRUE COPY OF THE JUDGMENT IN CC.331/2009 ON THE FILE OF THE
JUDICIAL IST CLASS MAGISTRATE-II, THAMARASSERY.
ANNEXURE-II TRUE COPY OF THE FINAL REPORT.
ANNEXURE-III TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE
THE JUDICIAL 1ST CLASS MAGISTRATE KUNNAMANGALAM ON
30.11.11.
RESPONDENTS' EXHIBITS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
P.D.RAJAN, J
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Crl.M.C.No. 277 of 2012
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Dated this the 20th day of February, 2014
O R D E R
This is a petition filed under Section 482 of Code of Criminal Procedure praying that Annexure II in Crime No. 61/09 of Mavoor Police Station pending before Judicial First Class Magistrate, Kunnamangalam which was registered under Section 498(A) and 406 IPC may be quashed. The allegation is that petitioner married the fifth respondent on 22.12.1996 as per Muslim customary rights, thereafter, both of them resided together as husband and wife in the matrimonial house. While residing so, petitioner ill treated her both physically and mentally demanding more amount as dowry. In the circumstances, she was forced to reside with her parents. Thereafter, she filed Annexure-II complaint before the Judicial First Class Magistrate Court, Kunnamangalam, which was forwarded to Mavoor Police for investigation under Crl.M.C.No. 277 of 2012 2 Section 156(3)of Cr.P.C. Mavoor Police, after investigation filed Annexure-II before the Judicial First Class Magistrate Court, Kunnamangalam. In the circumstances, petitioner approached this Court with this petition contending that if the trial is continued it will amount to double jeopardy and merely an abuse of process of court.
2. The learned counsel appearing for the petitioner contended that the marriage with fifth respondent was actually solemnized on 01.11.1996 as per customary rights and thereafter, they resided together. The fifth respondent filed another complaint before the Judicial First Class Magistrate Court-II, Thamarasserry with the same allegation under Section 406 and 498(A) IPC for the same incident and after trial, petitioner was acquitted by Annexure-I judgment. The allegation in CC 441/09 before the Kunnamangalam Magistrate Court and CC 331/09 before the Thamrasserry Magistrate Court are based upon the same set of facts. Crl.M.C.No. 277 of 2012 3 Hence, Annexure-II is to be quashed.
3. The learned Public Prosecutor also admitted that the petitioner had undergone trial for the same set of facts and he was acquitted in the earlier trial.
4. Section 300(1) of the Cr.P.C says that a person once convicted or acquitted is not to be tried for same offence. It reads as follows:
"300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof."
The short point raised in the above section is with regard to the application of doctrine of "double jeopardy." This maxim guarantees the basic pleas of "autrefois acquite and autrefois convict.", which is guaranteed U/s.300 of the Code of Criminal Procedure. An analysis of Section 300 (1) will bring out that 'a person who has once been tried by a court of competent jurisdiction for an Crl.M.C.No. 277 of 2012 4 offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence. While Article 20(2) does not in terms maintain a previous acquittal, Section 300 of the Code fully incorporates the principle and explains in detail the implications of the expression "same offence". Six illustrations in the section explain its concrete terms and the different situations which the courts may have to deal with. The explanation portion "acquittal" has been explained in negative terms which says that the dismissal of a complaint, or the discharge of the accused is not "acquittal" because both are not considered as the final decisions regarding the innocence of the accused person. The word "tried" in Section 300 (1) does not necessarily mean tried on the merits. The composition of an offence under Section 320, or a withdrawal from the prosecution by the Public Prosecutor under Section 321, would result in an acquittal of the accused even though the accused is not tried on merits. Crl.M.C.No. 277 of 2012 5 Such an acquittal would bar the trial of the accused by a second complaint on the same facts.
5. The plea of autrefois acquit and autrefois convict are taken as a bar to criminal trial on the ground that the accused person had been once already charged and tried for the same alleged offence and was either acquitted or convicted. These rules are based on the principle that "a man may not be put twice in jeopardy for the same offence." Article 20(2) of the Constitution recognises the principle as a fundamental right. It says, "no person shall be prosecuted and punished for the same offence more than once.".
Section 26 of the General Clauses Act, 1897 and Section 71 IPC read as follows:
"26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes and offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
"71. Limit of punishment of offence made up of several offences- Where anything which is an Crl.M.C.No. 277 of 2012 6 offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of is offences, unless it be so expressly provided."
The Apex Court in Sangeetaben Mahendrabhai patel v. State of Gujarat and another [(2012) 7 SCC 621] held as follows:
"The fundamental right which is guaranteed under Article 20(2) enunciates the principle of 'autrefois convict' or 'double jeopardy' i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.
(paras 14 and 15) Maqbool Hussain v. State of Bombay AIR 1953 SC 325: 1953 Cri LJ 1432, S.A. Venkataraman v. Union of India ARI 1954 SC 375: 1954 Cri. LJ 993, followed The issue estoppel rule is but a facet or doctrine of autrefois acquit. Where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an Crl.M.C.No. 277 of 2012 7 earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. What is necessary is to analyse the ingredients of the two offences and not the allegations made in the two complaints. (paras 15 and 22 t 24) Doctrine of double jeopardy is enshrined in Section 300 Cr.P.C and Section 26 of the General Clauses Act. Both the provisions employ the expression "same offence". There may be cases of misappropriation, cheating, defamation etc. which may give rise to prosecution on criminal side and also for action in cvil court/other forum for recovery of money by way of damages, etc. Therefore, it is not always necessary that in every such case the provisions of Article 20(2) of the Constitution may be attracted. In order to attract the provisions of Artilce 20(2) of the Constitution i.e., doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge. (Paras 14, 15 and 30 to 33).
6. Now, what remains for consideration is that whether this is a fit case to invoke inherent jurisdiction.
According to Section 482 of Cr.P.C, inherent jurisdiction can be invoked to make such orders necessary to "give Crl.M.C.No. 277 of 2012 8 effect to any order" under this code or prevent "abuse of the process" of any court or to recure the "ends of justice". In the State of Haryana v. Bhajanlal, [1992 SCC (Crl) 426] held thus:
"(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance.
7. When this matter was brought before me, I directed the learned Public Prosecutor to ascertain the facts and submit a report. As per the direction, Sub Crl.M.C.No. 277 of 2012 9 Inspector of Police, Mavoor identified the petitioner and reported that both cases were registered on the basis of same allegation. The report reads as under:
"So$ WLq|>]jV fRP CSf SWt]Rs kqLf] (Lq] 12.3.09 f]af] mzO. fLoqSjq] JFCM SWLaf]p]$ CMP 327/09 NkWLqU kqLf] RWLaO(OWpOU mzO. SWLaf] SWtV q^]p! R\aOPf]jV oO(U SkLs}yV Spxj]Ss(V kqLf] Ap\O RWLaO(OWpOU AfONkWLqU oO(U SkLs}yV Spxj]$ Cr.No.94/09 U/S. 498 (A) 406 IPC Bp] 13.3.09 f]af] SWyV q^]p! R\pEV Nkf] xT(>s]pORa Skq]$ fLoqSj SWLaf]p]$ WOckNfU 16.9.2009 f] af] yo!U]\fLpOU CC 333/09 Bp] SWLaf] WockNfU y~}Wq]\fLpOU k]P}aV v]\Lqe(V SwxU 21.10.2011 f]af] U/S. 248(1) NkWLqU SWtVAcquitted BpfLpOU WLeOPO.
So$ kr4]q](OP q:V SWyOWtORa yUnvrsU v|f|qoLeV. Cf]Rs yUnvU KPLeV. CT SWy]Rs kqLf](Lq]pOU If] !W]pOU KSq BtO fRPpLeV. NkqOf WLq| >]jV 24.2.2009 f]af] oLvP! SkLs}yV Spxj]$ SWyV q^]p! R\pE WLq|U or\V Rv\V ASf WLq|>]jV mzO. fLoqSjq] SWLaf]p]$ CMP 329/09 Bp] kqLf] j$WOWpOU R\pEfLRePV v|)oLWOPO:V. Bpf]jL$ mzO. RRzSWLaf] oORLRW CT r]SUL!YV AjMq jaka]W%(V fLuVopLp] yo!U]\ORWLgOPO."Crl.M.C.No. 277 of 2012 10
8. It is clear from the above report that the fifth respondent filed the petition before the Circle Inspector of Police, Medical College Police Station which was referred to Mavoor Police Station. The Mavoor Police registered a crime 61/09 under Section 498(A) and 406 IPC and after investigation, the Sub Inspector of Police, Women Cell laid charge before the Judicial First Class Magistrate Court, Kunnamangalam and that case is under trial. For the same set of facts, the fifth respondent filed another complaint on 12.03.2009 before the Judicial First Class Magistrate Court-II, Thamarasserry, which was forwarded to Mukkom Police Station. On receiving the complaint. Mukkom Police registered the Crime 94/09 under Section 498(A) and 406 IPC and after completing investigation, a Final Report was filed before the Judicial First Class Magistrate-II, Thamarasserry and the case was tried as C.C No. 331/2009 and the petitioner was acquitted on 21.10.2011 under Section 248(1) of Cr.P.C. A close scrutiny of the above report of the Sub Inspector Crl.M.C.No. 277 of 2012 11 of Police, Mavoor on 20.02.2014 shows that the case is hit under Section 300 of Cr.P.C. Section 300 IPC shows that the person who is once tried by a court of competent jurisdiction for an offence and convicted or acquitted of the offence and as such conviction or acquittal remains in force, he shall not be tried against the same set of facts. The principle has been derived from Article 20 of the Constitution of India which has been recognized as a fundamental right. Therefore, I am of the view that this is a fit case to quash the second trial in CC 241/2009 pending before the Judicial First Class Magistrate Court, Kunnamangalam invoking inherent jurisdiction under Section 482 Cr.P.C.
Hence, Annexure-II is hereby quashed under Section 482 Cr.P.C and the Crl.M.C is accordingly allowed.
Sd/- P.D.RAJAN, JUDGE lsn